| Mich. | Oct 27, 1893
Plaintiffs brought suit on two promissory notes, amounting at the time of the trial to $112.50. The plaintiffs introduced the notes, and rested their case. The defendant then offered testimony tending to show that the notes were given without consideration, and were obtained by a fraud perpetrated by the payee, one S. S. Saunders. The plaintiffs, in rebuttal, gave testimony tending to show that the notes were purchased by them for value, before maturity, in good faith, and without any knowledge on their part of any fraud in the procuring of the notes,, or of any failure of consideration. The court, in a very fair and full charge, .submitted to the jury the questions of whether there was fraud, and whether the plaintiffs purchased the notes in good faith and for value before maturity. Some criticism is made of the charge upon these points, but it follows so closely the lines ol: repeated adjudications of this Court that it is not desirable to demonstrate its correctness by extended quotations. At the conclusion of the charge, how©ver, the following occurred:
“And before the plaintiffs can be defeated at all, gentlemen, you must find fraud, — such fraud practiced by this man Saunders as would have defeated the notes in his hands; secondly, that these plaintiffs had notice of it or knowledge of it before they purchased the notes.
“Mr. Withey, Counsel for Defendant: Our theory is that ¿hey did not buy them; that they received them as colJafceral.
“The Court: Suppose they were taken as collateral, in 'good faith?
“Mr.. Withey: They were held only as security, and they .belonged .to this man Saunders all the while. They could . not recover them.
“The Court: Now, gentlemen, that is all there is to it. <On the law it is a very plain case, and on the facts it presents a question for y0nr solution.”
The -court not only failed to correct the statement of law by Mr. Withey, but by putting the question as he did .in connection with his charge, and permitting the answer
The notes in question each provided for the payment of a certain sum, with interest at 7 per cent., and contained the further stipulation: “If not paid when due, I agree to pay 10 per cent, interest from date until paid.” It is contended by the appellee that this introduced an uncertainty as to the amount, and that, therefore, the notes were not negotiable, and that, if this be so, the plaintiffs could not have been damaged by the instructions given. We think there was no such uncertainty as to the amount as to destroy the character of negotiability in the instrument. The precise question is decided in Hope v. Barker, 43 Mo. App. 632" court="Mo. Ct. App." date_filed="1891-02-02" href="https://app.midpage.ai/document/hope-v-barker-6616518?utm_source=webapp" opinion_id="6616518">43 Mo. App. 632; and in Russell & Co. v. Klink, 53 Mich. 161" court="Mich." date_filed="1884-03-06" href="https://app.midpage.ai/document/russell--co-v-klink-7931558?utm_source=webapp" opinion_id="7931558">53 Mich. 161, a note containing a like stipulation was treated by this Court as negotiable, although the question was not discussed. There was not wanting the element, of certainty in the note. There was no date at which the precise amount due upon the note could not have been determined by an inspection of the instrument itself.
A discussion of .the other questions involved would not, we think, be of any material aid in a new trial of the cause.
For the error pointed out the judgment will be reversed, and a new trial ordered.